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Bhagavatula Gopalakrishnamurthi and ors. Vs. Dhulipalla Sreedhara Rao and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Case NumberCivil Revn. Petn. No. 1459 of 1948
Judge
Reported inAIR1950Mad32
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantBhagavatula Gopalakrishnamurthi and ors.
RespondentDhulipalla Sreedhara Rao and anr.
Appellant AdvocateP.V. Chelapathi Bao, Adv.
Respondent AdvocateV. Suryanarayana, Adv.
DispositionPetition allowed
Cases ReferredMa Shwe Mya v. Maung Mo Hmaung
Excerpt:
- - b without covenanting for the existence or extent of the title of the insolvent .these defendants did not acquire title to any more than the half share of defendant 1.'during the pendency of the suit, the provincial insolvency act was amended by the addition of section 28a and by reason of the amendment the official receiver, who was in possession of the estate of the insolvent became entitled to sell the son's share as well and that the amending act was declared to have retrospective effect. in the counter affidavit it is also stated that this is clearly an afterthought......alienations. the defendant is the father of the plaintiffs. he was adjudicated insolvent and the official receiver was made a party to the suit. the suit relates to the setting aside of alienations not only made by the father but also by the official receiver and para. 5 of the plaint states:'there was no proper vesting order passed in favour of the official receiver, neither the half share of plaintiff 1 nor the father's power to sell the same was or could be vested in the official receiver in i. p. no. 33 of 1930. the latter could if at all deal with defendant 1's half share. the official receiver sold the insolvent's right title and interest in the properties mentioned as items 6 to 17 of schedule. b without covenanting for the existence or extent of the title of the insolvent ..........
Judgment:
ORDER

Krishnaswami Nayudu, J.

1. Petitioners are defendants 14 and 22 in O. S. No. 59 of 1945 on the file of the Court of the Subordinate Judge, Tenali. The suit was for partition and for possession after setting aside certain alienations. The defendant is the father of the plaintiffs. He was adjudicated insolvent and the Official Receiver was made a party to the suit. The suit relates to the setting aside of alienations not only made by the father but also by the Official Receiver and para. 5 of the plaint states:

'There was no proper vesting order passed in favour of the Official Receiver, Neither the half share of plaintiff 1 nor the father's power to sell the same was or could be vested in the Official Receiver in I. P. No. 33 of 1930. The latter could if at all deal with defendant 1's half share. The Official Receiver sold the insolvent's right title and interest in the properties mentioned as items 6 to 17 of Schedule. B without covenanting for the existence or extent of the title of the insolvent ..... These defendants did not acquire title to any more than the half share of defendant 1.'

During the pendency of the suit, the Provincial Insolvency Act was amended by the addition of Section 28A and by reason of the amendment the Official Receiver, who was in possession of the estate of the insolvent became entitled to sell the son's share as well and that the Amending Act was declared to have retrospective effect. The plaintiffs filed I. A. No. 1047 of 1948 for amendment of the plaint by seeking to introduce the following paragraph as para. 5A.

'The plaintiffs submit that under Act XXV [25] of 1948 the Official Receiver is in exactly the same position as the father in the matter of alienation of joint family properties to pay the father's debts and has no higher or different powers than the father would have had, if he was selling the property himself for his own debts. Plaintiffs submit that the sales by the Official Receiver of items 6 to 17 of the plaint B schedule were for grossly inadequate price. Plaintiffs also learn that the sales were rushed through in undue haste and that the prices realised ware miserably low. The sales are not therefore binding upon the plaintiff's half share.'

2. The learned Subordinate Judge granted the amendment. The question is whether the order of the learned Judge is correct. In para. 5 of the original plaint, except that the plaintiffs relied on the position of law, they did not choose to make any statement as regards the nature of the sale, consideration therefor and its invalidity otherwise than under the provisions of the Provincial Insolvency Act before the enactment of Section 28A of the Act. But they have now chosen to give certain facts and want to plead those facts in order to entitle them to have the sale set aside. It is argued on behalf of the petitioner that the Court was not entitled to allow such an amendment as a new cage was set up on fresh facts, which facts were available even when the plaint was originally filed but no mention was made in para. 5 of the plaint. In the counter affidavit it is also stated that this is clearly an afterthought. In the affidavit in support of the application it is stated that by reason of the amendment of the Provincial Insolvency Act by Act XXV [25] of 1948 it became necessary to examine the question from this new standpoint and therefore the plaintiff prayed that the amendment might be allowed. The learned counsel for the respondents cited Bhimudu v. Pitchayya : AIR1946Mad497 , Venkataratnam v. Venkamma (1926) 23 M. L. W. 618: A. I. R. 1926 Mad. 764 and Sakkaraja, v. Muthuswami, : AIR1936Mad632 in support of his contention that by reason of subsequent events occurring after the filing of the plaint it was open to the Court to grant amendment. But on examining those decisions I find that if by reason of the subsequent events certain rights accrued to the plaintiff the plaintiff would be entitled to claim reliefs under those rights. But in this case certain facts are alleged which facts were available to the plaintiffs and which the plaintiffs have not chosen to mention in the original plaint and I do not think it would be open to Courts to permit such an amendment as it would, in the words of their Lordships of the Privy Council in the case reported in Ma Shwe Mya v. Maung Mo Hmaung, 48 Cal. 832 : A. I. R. 1922 P. C. 249, permit a new case to be made on facts which were available but were not pleaded. I think that the result of allowing the amendment would be to introduce a new element which was absent in the original plaint and that the plaintiffs are not entitled to any such amendment. I hold that the learned Subordinate Judge was in error in granting the amendment. The petition is allowed with costs.


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